William Blackstone, 3 Commentaries on the
Law of England ch 19 (1765), http://www.yale.edu/lawweb/avalon/blackstone/blacksto.htm
[visited 26 August 2004]

Concerning original process

“[P]rocefs, as we are now to confider
it, is the method taken by the law to compel a compliance with the original
writ, of which the primary ftep is by giving the party notice to obey it. This
notice is given upon all real praecipes, and alfo upon all perfonal writs for
injuries in court at the return of the original writ, given to the defendant
by two of the fheriff's meffengers called fummoners, either in perfon or left
at his houfe or land . . .
This warning on the land is given, in real actions, by erecting a white
ftick or wand on the defendant's grounds; . . . and by ftatute 31 Eliz.
c. 3. it muft alfo be proclaimed on fome funday before the door of the parifh
church

“IF the defendant difobeys this
verbal monition, the next procefs is by writ of attachment
. . ..” This is a writ, not iffuing out of chancery, but out of the court of
common pleas, being grounded on the non-appearance of the defendant at the return
of the original writ; and thereby the fheriff is commanded to attach him . .
. , that is, certain of his goods, which he fhall forfeit if he doth not appear
g; or by making him find fafe pledges or fureties, who fhall
be amerced in cafe of his non-appearance.

“IF, after attachment, the defendant
neglects to appear, he not only forfeits this fecurity, but is moreover to be
farther compelled by writ of diftringas l, or diftrefs, infinite; . .
. commanding the fheriff to diftrein the defendant from time to time, and continually
afterwards, by taking his goods and the profits of his lands, which he forfeits
to the king if he doth not appear.

.* * *

“AND here by the common, as well
as the civil, law the procefs ended in cafe of injuries without force; the defendant,
if he had any fubftance, being gradually ftripped of it
all by repeated diftreffes, till he rendered obedience to the king's
writ; and, if he had no fubftance, the law held him incapable of making fatisfaction,
and therefore looked upon all farther procefs as nugatory. . . . . But, in cafes
of injury accompanied with force, the law, to punifh the breach of the peace
and prevent it's difturbance for the future, provided alfo a procefs againft
the defendant's perfon, in cafe he neglected to appear upon the former procefs
of attachment, or had no fubftance whereby to be attached; fubjecting his body
to imprifonment by the writ of capias ad refpondendum.

* * *

“[I]t is now ufual in practice,
to fue out the capias in the firft inftance, upon a fuppofed return of the fheriff;
efpecially if it be fufpected that the defendant, upon notice of the action,
will abfcond: and afterwards a fictitious original is drawn up, with a proper
return thereupon, in order to give the proceedings a colour of regularity. When
this capias is delivered to the fheriff, he by his under-fheriff grants a warrant
to his inferior officers, or bailiffs, to execute it on the defendant.

* * *

“AN arreft muft be by corporal feifing
or touching the defendant's body; after which the bailiff may juftify breaking
open the houfe in which he is, to take him: otherwife he has no fuch power;
but muft watch his opportunity to arreft him. For every man's houfe is looked
upon by the law to be his caftle of defence and afylum, wherein he fhould fuffer
no violence.

* * *

“[W]hen the fummons fell into difufe,
and the capias became in fact the firft procefs, it was thought hard to imprifon
a man for a contempt which was only fuppofed: and therefore in common cafes
by the gradual indulgence of the courts (at length authorized by ftatute 12
Geo. I. c. 29. which was amended by ftatute 5 Geo. II. c. 27. and made perpetual
by ftatute 21 Geo. II. c. 3.) the fheriff or his officer can now only perfonally
ferve the defendant with a copy of the writ or procefs, and with notice in writing
to appear by his attorney in court to defend this action; which in effect
reduces it to a mere fummons.”